Catholic Charities of Diocese v. Zoning Board of Appeals

— Judgment unanimously affirmed without costs. Memorandum: Petitioner applied to respondent Zoning Board of Appeals (Board) for a use variance that would eliminate from the zoning ordinance the "owner-occupied” status as it applied to the subject property. Petitioner was entitled to a use variance because it had demonstrated unnecessary hardship in that the property would not yield a reasonable rate of return unless the restriction were eliminated, the restriction had placed the owner in a unique plight, and elimination of the restriction would not alter the essential character of the neighborhood (see, Matter of Village Bd. v Jarrold, 53 NY2d 254, 257; Matter of Otto v Steinhilber, 282 NY 71, 76; see also, Bellanca v Gates, 97 AD2d 971, affd 61 NY2d 878). In those circumstances, we conclude that the determination of the Board was arbitrary and capricious and that the judgment of Supreme Court, annulling that determination and granting the variance, was appropriate (see, Human Dev. Servs. v Zoning Bd. of Appeals, 110 AD2d 135, affd 67 NY2d 702; Matter of Commco, Inc. v Amelkin, 109 AD2d 794, lv denied 65 NY2d 606). (Appeal from Judgment of Supreme Court, Jefferson County, Gilbert, J.— Article 78.) Present — Callahan, J. P., Doerr, Denman, Green and Lowery, JJ.